Pre-Trial Diversion Programs

Pre-Trial Diversion Programs

Robert C. Phillips
DDA (Ret.)
September, 2021

Pen. Code §§ 1001.35 (New; Effective 6/27/18) & 1001.36 (New; Effective 6/27/18; and Amended; 1/1/2019 & 1/1/2020); Diversion of Individuals with Mental Disorders:

Summary:  New Chapter 2.8A in Title 6 of Part 2 of the Penal Code, entitled “Diversion of Individuals with Mental Disorders,” was enacted (AB 1810, SB 215), and subsequently amended, to grant pre-trial diversion in either a misdemeanor or felony case if:

1. The trial court is satis ed that the defendant suffers from a speci ed mental disorder (requires this evidence to be provided by the defense and requires that it include a recent diagnosis by a quali ed mental health expert);

2. The trial court is satis ed that the mental disorder was a signi cant factor in the commission of the charged offense.

The court is permitted to review any relevant and credible evidence, including police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, and medical records);

3. A quali ed mental health expert opines that the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to treatment;

4. The defendant consents to diversion and waives his or her right to a speedy trial;

5. The defendant agrees to comply with treatment; and

6. The court is satis ed that the defendant will not pose an unreasonable risk of danger to public safety, as de ned in existing P.C. § 1170.78, if treated in the community.

The court is permitted to consider the opinions of the district attorney, the defense, or a quali ed mental health expert; the defendant’s violence and ....

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